IN THE CASE OF:	  

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20080019352 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Bad Conduct Discharge (BCD) be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that at the time he was convicted by a general court-martial of larceny, he was an alcoholic and was not aware of what his crime was or what he was doing at the time because he had a disease.

3.  The applicant provides a copy of a one-page letter explaining his application and post-service accomplishments and a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 7 June 1927 and enlisted in the Regular Army on 13 September 1946.  He completed his training as a photo lab technician and departed for the Asiatic-Pacific Theater of Operations (APTO) on 3 April 1947.

3.  He was promoted to the rank of corporal on 15 April 1948 and departed from Japan on 23 July 1949 and was transferred to Fort Lawton, Washington, where he was honorably discharged on 19 August 1949.

4.  On 29 September 1949, he again enlisted in the Regular Army in the rank of corporal for a period of 3 years and was transferred to Korea for assignment to the 34th Engineer Company (Base Photo Mapping).

5.  The available records show the applicant was convicted by a general court-martial of larceny on 20 June 1952.  General Court-Martial Order Number 6, published by Headquarters and Headquarters Command, Far East Command announced his conviction and his sentence of confinement for 1 year and a BCD.  He was transferred to Camp Cooke, California for internment at the Branch United States Disciplinary Barracks (USDB) - Lompoc to serve his confinement.

6.  The applicant was discharged with a BCD on 24 October 1952 at the Branch USDB - Lompoc pursuant to his general court-martial conviction.  He had served 2 years, 3 months and 25 days of active service during his current enlistment and had 275 days of lost time due to being in confinement.

7.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.



9.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that trial by court-martial was warranted by the gravity of the offenses charged and that his conviction and discharge were effected in accordance with applicable law and regulations, with no violations of any of the applicant's rights and that the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been considered.  However, they are not sufficiently mitigating to warrant clemency when compared to the seriousness of his offense and the lack of corroborating evidence to support his contentions.  Accordingly, his service does not rise to the level of a discharge under honorable conditions.   
  
4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _XXX   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080019352



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ABCMR Record of Proceedings (cont)                                         AR20080019352



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